IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 564 OF 2023.

In the matter of:

An  application  under  Article  102  of  the Constitution  of  the  People’s  Republic  of Bangladesh.

And

In the matter of:

Northern Power Solution Limited.

                                      ......... Petitioner.

-Versus-

Bangladesh Energy Regulatory Commission and others.

                                    ........Respondents.

Mr. Md. Nasir Shikder, Advocate with

Mr. Md. Homayoun Kabir Ahsan, Advocate

                       ......... For the Petitioner.

Mr. A.M. Masum, Senior Advocate with

Mr. Taisir Haque, Advocate

Mr. Sayed MahsibHossain , Advocate and

Mr. Nahiyan Ibne Subhan, Advocate

                                                     .…… For the Respondent No. 3.

              Present:

Mr. Justice Mohammad Ullah                 And

Mr. Justice Md. Toufiq Inam

Heard on 21.05.2025, 22.05.2025 and Judgment Delivered On 28.05.2025.

Md. Toufiq Inam, J:

Following the initial hearing of the application under Article 102 of

the Constitution, this Rule Nisi was issued on 29.01.2023 at the

instance of the petitioner, calling upon the respondents to show cause as to:

“Why the impugned Award dated 26.04.2022 passed by the respondent No. 1. in Dispute Settlement Case No. 04(1) of 2015 allowing the claim in part (Annexure-E) and as to why the  order  being  No.28.01.0000.016.31.003.16.5370  dated 14.12.2022  passed  by  the  respondent  No.  2  rejecting  the review application  (Annexure-F1) should not be declared without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.”

At  the  time  of  issuance  of  the  Rule  Nisi,  the  operation  of  the impugnedAward dated 26.04.2022 passed by the respondent No.1 in Dispute Settlement Case No.04(1) of 2015 allowing the claim in part (Annexure-E) was stayed for a period of 6(six) months from date. However, the effect of this interim stay order has itself been stayed  by  the  Appellate  Division,  pursuant  to  its  order  dated 15.05.2024 passed in Civil Petition for Leave to AppealNo. 966 of 2023, until disposal of the present Rule Nisi. The Hon’ble Chief Justice has sent the matter to this court for disposal.

The  relevant  facts  for  disposal  of the present  Rule  Nisi  are  as follows:

1.                 In response to a nationwide power crisis, the Government of Bangladesh adopted a fast-track policy to procure electricity from  local  and  foreign  producers.  Under  this  policy,  the Petitioner proposed to establish a 50 MW HFO-based rental power  plant  for  a  five-year  term. Accordingly,Bangladesh Power  Development  Board-BPDB  (the  Respondent  No.3) issued a Notification of Award on 30.06.2010 in favour of the Petitioner. The Petitioner executed Contract on 27.07.2010 for the supply of electricity from its Katakhali, Rajshahi plant under the stipulated terms.

2.                 Disputes  arose  between  the  Petitioner  and  BPDB  for installation of a 50 MW rental power plant  at Katakhali, Rajshahi including its operation, maintenance and supply of electricity on rental basis when the BPDB, the Respondent No.3  imposed  upon  the  Petitioner  an  amount  of  USD 93,00,000 as liquidated damages.
3.                 The Petitioner initiated arbitration proceedings before BERC by submitting a detailed statement of claim, following which an  Arbitral  Tribunal  was  constituted.  Respondent  No.3 (BPDB) filed a statement of defence. On 22.06.2019, the Tribunal issued  its Award,  declaring  that  the  petitioner is liable  to  pay  the  BPDB  USD  2,600,000  as  liquidated damages.

4.                 However, the BERC upon rehearing the Dispute Settlement Application  No.  4(1)  of  2015,  by  its  Award  dated 26.04.2022,declaring that the petitioner is liable to pay the BPDB USD 73,75,000 as damages and thereby adopted an entirely  different  view  from  that  previously  taken  by  the earlier  Arbitration  Tribunal  constituted  under  BERC’s authority.Then  the  Petitioner  moved  a  Review  Petition, which  was  also  dismissed  on  14.12.2022  as  being  time- barred. Challenging both the BERC Award dated 26.04.2022 (Annexure-E)  and  the  subsequent  dismissal  of  Review Petition(Annexure-F1), the Petitioner obtained the present Rule Nisi.

Mr. Nasir Shikder, the learned counsel for the Petitioner, submits that  upon  rehearing,  BERC,  by  its  Award  dated  26.04.2022, arbitrarily  imposed  damages  amounting  to  USD  7,375,000.  In doing so, BERC adopted an entirely different view from that taken by  the  earlier  Arbitration  Tribunal  constituted  under  its  own authority. According to the learned counsel, this action is without lawful authority, devoid of legal effect.

Mr. Shikder argues that in conducting the rehearing, BERC wholly deviated  from  the  findings  of  its  own  duly  constituted Arbitral Tribunal, failed to apply settled principles of law, and acted without due judicial consideration. Such conduct, he asserts, constitutes a grave jurisdictional error. In taking these steps, BERC is said to have  exceeded  the  authority  vested  in  it  under  the  Bangladesh Energy Regulatory Commission Act, 2003 (“the Act, 2003”) and the Bangladesh Energy Regulatory Commission Dispute Settlement Regulations, 2014 (“the Regulations, 2014”). According to him, neither the Act nor the Regulations empower BERC to rehear a dispute de novo without first setting aside the earlier Award dated 22.06.2019. Any action taken beyond the scope of its statutory mandate is, therefore, ultra vires, invalid, and without legal effect.

He  further  submits  that  BERC  failed  to  properly  consider  the applicable legal framework, including Section 40 of the Act, 2003, Regulations 10, 11, 12, and 20 of the Regulations, 2014, as well as the subsequently  enacted  Regulations  of  2021.  In  particular,  he argues that BERC acted unlawfully in purporting to issue a fresh award without first nullifying or setting aside the original Award dated  22.06.2019.  In  his  view,  an  award  passed  by  a  duly constituted and competent Arbitral Tribunal cannot be reopened or re-adjudicated by BERC acting in its administrative capacity. The impugned  Award  dated  26.04.2022  is  therefore,  he  contends, vitiated by malafide intent and a clear absence of jurisdiction.

Per contra, Mr. A.M. Masum, the learned senior counsel appearing on behalf of Respondent No. 3 (BPDB), at the outset, submits that the instant Writ Petition involves disputed questions of fact, which are  not  amenable  to  adjudication  under  writ  jurisdiction.  He contends  that  the  relief  sought  by  the  Petitioner  is  essentially predicated  on  a  re-evaluation  of  facts,  evidence,  and  technical matters, an exercise that falls outside the scope of judicial review under  Article  102  of  the  Constitution.  Interference  with  the impugned Award and the subsequent decision on review would undermine the legislative scheme, which specifically provides a specialized dispute resolution mechanism within the commercial and technical context through BERC.

Mr.  Masum  argues  that  under  Section  40(1)  of  the Act,  2003, disputes between licensees, or between licensees and consumers, are  to  be  referred  to  the  BERC  for  settlement,  notwithstanding anything to the contrary in the Arbitration Act, 2001 or any other law.  Section  40(2)  empowers  the  BERC  either  to  conduct  the arbitration itself or to appoint an external arbitrator. In the present case,  BERC  acted  in  its  own  capacity  and  rightly  passed  the impugned Award dated 26.04.2022 under Section 40(2).

He further submits that Section 40(4) of the Act empowers BERC, upon receiving an award, to (i) approve and implement the award; (ii) cancel or modify; or (iii) send back it to the arbitrator for review. Therefore, BERC acted well within its statutory mandate when it declined to accept the prior Award dated 22.06.2019 and issued a fresh Award dated 26.04.2022 upon re-hearing the matter.

Mr. Masum relies on the case of Government of Bangladesh v. Md. Jalil and Others, reported in 15 BLD (AD) 175, to submit that the High Court Division is not an appellate forum over an award passed by BERC. He contends that interference with findings of fact by BERC is impermissible in writ jurisdiction unless it is established that BERC acted without jurisdiction, proceeded without evidence or  ignored  material  evidence,  acted  malafide,  or  violated  the principles of natural  justice.  In the  absence of such conditions, intervention by the High Court Division would itself be without jurisdiction.

He also contends that the BERC's Award dated 26.04.2022 and its subsequent rejection of the Petitioner’s review petition were passed validly. BERC found that the proceedings initiated by the previous Commission had not been approved under Section 40(4), thereby rendering the earlier tribunal’s Award  non-est. As such, BERC’s final Award is legally binding and conclusive.

Lastly, Mr. Masum submits that the dispute resolution framework under  the  Act,  2003  and  the  Regulationsconstitutes  a  form  of Alternative  Dispute  Resolution  (ADR)  specifically  designed  to ensure expeditious and expert adjudication. Allowing such awards to  be  challenged  in  writ  jurisdiction  would  frustrate  the  very purpose of the statutory ADR mechanism and render it ineffective.

We  have  heard  the  learned  counsels  for  both  parties  and  have carefully  examined  the  writ  petition,  the  annexures  thereto,  the Affidavit-in-Opposition, and all other relevant materials on record.

To facilitate a clear understanding of the submissions advanced by the  contesting  parties,  the  pertinent  provisions  of  the  law  and Regulations are hereby reproduced for convenience:

Bangladesh Energy Regulatory Commission Act, 2003:

“40. Arbitration - Settlement by the Commission-

1.             Notwithstanding anything contained in the Arbitration Act, 2001  (Act  No.  1  of  2001)  or  any  other Act.  any  dispute arising between the licencees, or licencees and consumer shall be referred to the Commission for its settlement:

Provided that a contract, executed between the Government or any of its agency and a private company, in respect of energy,  immediate  before  this  Act  comes  into  force,  the conditions of the said contract shall be applicable for the settlement of the disputes.

2.             Commission as an arbitrator may. suemoto, take steps and award adjudication of a dispute or appoint arbitrator for settlement of dispute.
3.             Methods  and  procedures  for  the  said  settlement  shall  be specified by regulation's.
4.             Arbitrator  appointed  by  the  Commission  shall  submit  its award  to  the  Commission  and  Commission  may  pass  an appropriate order, as follows, on the basis of it-

1.              approval and implementation of the award;
2.              cancellation or amendment of the award or
3.              sending of the award for review of the arbitrator.

5.             Award or order given by the Commission shall be deemed to be the final.
6.             Award  or  order  given  by  the  Commission  shall  be implemented in such a way as if it is a decree of a Civil Court.
7.             At any time during the continuation of the proceedings under this part or any time before its commencement. Commission may make any such interim order which may be considered as appropriate by it.”

Bangladesh  Energy  Regulatory  Commission  Dispute  Settlement Regulations, 2014:

“20. Confirmation and implementation of the award.

1.             The BERC Tribunal or Arbitral Tribunal, as the case may be, shall  submit  its  award  to  the  Commission  and  the Commission may pass appropriate order on its basis as to

1.                the approval and implementation of the award;
2.                the cancellation or amendment of the award; or
3.                sending the award to the Tribunal for review.

2.             An order given by the Commission under sub-regulation (1) shall be deemed to be final and be implemented as if it is a decree of a civil court.
3.             The  Commission  may  require  either  party  to  notify  the Commission of the compliance with the award.”

The Petitioner challenges the Award dated 26.04.2022 passed by the BERC made under Section 40 of the BERC Act, 2003, which directed the petitioner to pay USD 73,75,000 to the BPDB, the respondent No. 3. It is settled law that judicial review under Article 102 is limited in scope and does not extend to reappreciation of facts or technical findings of a specialized tribunal unless there is a jurisdictional  error,  violation  of  natural  justice,  or  manifest illegality. The issues raised in this writ petition involve commercial and  technical  determinations  based  on  complex  contractual  and operational matters, which lie outside the remit of judicial review.

Section  40(1)  of  the  BERC  Act  provides  that  notwithstanding anything contained in the Arbitration Act, 2001 or any other law, all disputes between licensees, or between a licensee and a consumer, must be referred to BERC for settlement. Section 40(2) further authorizes BERC to act as an arbitrator or appoint an arbitrator. Thus, the Commission has exclusive jurisdiction in such disputes and may either conduct the arbitration itself or act on the award submitted  by  an  arbitral  tribunal.  Section  40(4)  empowers  the Commission to approve, amend, cancel, or remit the award for review, thereby giving BERC supervisory authority over all arbitral outcomes under its domain.

In the present case, the Petitioner relies on an earlier arbitral award

dated 22.06.2019 passed by a Tribunal under the auspices of BERC.

However,  the  BERC  in  the  impugned Award  dated  26.04.2022

made finding in relation to the earlier Award that- ""BZ¨em‡i we‡ivawU

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KZ…©K vwLjK…Z †iv‡q`v` cªv³b Kwgkb KZ…©K weBAviwm AvBb, 2003 Gi aviv

40(4) g‡Z Mªnb bv K‡i g~j we‡ivaxq wel‡q ïbvbxi Rb¨ 14/11/2019wLªt ZvwiL

avh©¨ K‡i Av‡`k cª`vb K‡ib hv 17/10/2019 wLªt Zvwi‡Li m¥viK bs- 6658 Gi gva¨‡g mswk­U‡`i AewnZ Kiv nq|'' (Underlined by us.)

This clearly demonstrates that the BERC did not simply “approve” the earlier Award under Section 40(4) of the BERC Act. The earlier Award was never approved or adopted under Section 40(4) of the BERC Act, 2003, and thus did not attain finality or binding legal effect.  BERC  further  held  that  the  proceedings  initiated  by  the previous Commission were not concluded in accordance with the statutory requirements, thereby rendering the earlier Award without legal force and non-est in the eye of law. Therefore, the BERC exercised its statutory authority to rehear the matter and issued a fresh Award dated 26.04.2022. Such action falls squarely within the Commission’s  powers  under  Section  40(4)  of  the  Act  and Regulation  20(1)  of  the  BERC  Dispute  Settlement  Regulations, 2014.  Accordingly,  the  allegation  that  BERC  acted  without jurisdiction is entirely without merit.

Section 40(5) of the Act declares that an award or order of the Commission shall be deemed final. Section 40(6) further provides that such award or order shall be implemented as if it were a decree of a civil court. Likewise, Regulation 20(2) affirms that the BERC’s order on an award is final and binding. The law thus explicitly excludes  further  adjudication  except  in  circumstances  involving jurisdictional overreach, malafides, or breach of natural justice. The High  Court  Division  is  not  an  appellate  forum  over  such  final determinations of fact and law by a statutory authority acting within its mandate.

The framework under the BERC Act and its regulations is designed to function as a specialized form of ADR, providing for expert determination  of  disputes  in  the  energy  sector.  The  Petitioner’s attempt to reopen the matter under writ jurisdiction undermines this statutory scheme and defeats the legislative intent to provide a final, technical resolution mechanism. Allowing such intervention would render Section 40(1) otiose and frustrate the purpose of establishing a sector-specific regulatory management.

Where  a  statutory  tribunal  such  as  the  BERC  is  vested  with exclusive  jurisdiction  to  adjudicate  disputes  under  a  specialized legislative scheme, including the authority to cancel, amend, or reissue an award under Section 40(4) of the BERC Act, 2003 and Regulation  20(1)  of  the  BERC  Dispute  Settlement  Regulations, 2014,  any  decision  or  award  rendered  thereby  constitutes  a specialized or expert award. Such awards, having been passed by a body  possessing  sector-specific  expertise  and  procedural safeguards, are not subject to appellate-like reappraisal under the writ jurisdiction of the High Court Division. Judicial interference under Article 102 of the Constitution is limited only to cases where it is established that the Commission acted without jurisdiction, in violation  of  the  principles  of  natural  justice,  in  the  absence  of evidence, by ignoring material evidence, or with malafide intent. In the absence of such specific and well-founded grounds, intervention by the Court would be unwarranted.

Moreover, mere disagreement with the outcome of the review does not  constitute  a  valid  ground  for  judicial  intervention.  In  the absence of any manifest illegality or malafide intent, the dismissal of the Review Petition warrants no interference by this Court under Article 102 of the Constitution.

In light of the statutory framework under Section 40 of the BERC Act, 2003, and Regulation 20 of the BERC Dispute Settlement Regulations, 2014, and having regard to the nature of the dispute as well  as  the  findings  recorded  by  BERC  in  its  Award  dated 26.04.2022, we find no infirmity in the decision-making process that  would  warrant  interference  under  Article  102  of  the Constitution. No case has been made out to establish that BERC acted without jurisdiction, in violation of the principles of natural justice, or in excess of its lawful authority. The Rule, therefore, fails.

Accordingly, the Rule is discharged, without any order as to costs. Let a copy of this judgment be communicated forthwith.

(Justice Md. Toufiq Inam) Mohammad Ullah, J:

I agree.

(Justice Mohammad Ullah)

Sayed/B.O. Ashraf/A.B.O.